ORDER
1. The appeal is filed by the accused of Sessions Case No. 35 of 1996 of the Court of Ld. Addl. Sessions Judge, Banaskantha District, at Palanpur, who held the accused guilty for the offences punishable under Sections 306 and 498-A, both of I.P.C., by Judgment dated 13-8-1996. The Ld. Judge was plea ed to convict the accused and imposed sentence of four years’ RI for the offence under Section 306 of I.P.C. and one year’s RI for the offence under Section 498-A and both the sentences were treated to run concurrently.
2. At the time when the appeal came for admission, looking to the case paper of deceased Mafiben, wife of the accused, a serious question arose as to the reliability of the Dying Declaration at Exh. 14. As could be seen later on in this Judgment, the said order of conviction is based solely on the said Dying Declaration at Exh. 14.
3. This situation came about because, the allegation of cruelty levelled against the accused by the prosecution could not be substantiated to the testimony of either the father, PW-5 Becharji Hemtabhai Thakor or the brother of deceased, PW-4 Meruji Becharji, respectively at Exhs. 25 and 24.
4. The deposition of the latter witness at Exh. 24 is quite interesting. It appears that, during the 12 years’ married life, the accused and deceased had two children, one daughter and one son, but whenever she came back to her parental home, on account of some quarrel, it appeared that, as per the said witness, the accused was not at fault, on the contrary this witness categorically stated that the deceased was a little bit dim witted.
5. So far as the genesis of the incident is concerned, Exh. 5 may be seen. It is filed by the I.O. after almost in the midst of the investigation which originated from the fact that, the deceased was brought to the hospital at Palanpur in injured condition. She was promptly given treatment by Dr. Parmar who has been examined as PW-1 at Exh. 8. In view of the aforesaid importance of the Dying Declaration at Exh. 14, that very Doctor was recalled here and further questions were put to him in the form of cross-examination, on 24th July, 1997 which was done at the instance of the Court.
6. While Mafiben was in treatment and when she died at about 11.00 p.m. on the date of the incident, i.e. 13-7-1995 at about 4.00 p.m., also, an unarmed Head Constable had visited the hospital and when he tried to contact the deceased and interrogated her, his efforts failed as she was not conscious. It has happened at 4.00 p.m. on the date of the incident. The deposition of that Constable is at Exh. 18, who is PW-3 and his name is Mafatlal Khemabhai Nayak.
7. According to the case of the prosecution and about this part of the case, there is no dispute at all, regarding the fact that the deceased had umped into the well which was dry. She was brought out from it by one Ahaji Maganji, PW-8, at Exh. 28. In the examination-in-chief, he has stated that, he did not ask the deceased Mafiben as to what had happened? In the cross-examination, he has come out with a story that, she was unconscious and when he asked her as to why she had jumped into the well, she did not speak. This has been put to him by the defence side in keeping with his earlier version as set out in the police statements.
8. Now, coming back to the Dying Declaration which was recorded by Shri Hirabhai Dabhi, Executive Magistrate and Deputy Mamlatdar, who received the yadi at 5.10 p.m., who went to the hospital and started recording the Dying Declaration at 5.15 p.m. and before that, he contacted the Doctor who was on duty and obtained his endorsement as to the condition of the patient on the yadi, at Exh. 13. In the margin, it has been written that the patient is fully conscious, who is of sound mind. Further the yadi also bears an endorsement in continuation of the aforesaid writing that, she remained conscious during the recording of the Dying Declaration.
9. According to the said witness, Shri Dabhi at Exh. 15, the Doctor was there only once at the time when the recording commenced and then he had left. According to said Sh Dabhi, further the declaration was recorded by him when he was the only one person with the maker of the declaration.
10. When the declaration is read, it is in a narration form and not in question-answer form. She narrates what happened in the earlier part of it relating to cattle and their care and as a result, has stated in this declaration, the accused had given blows with the reverse portion of axe. She was beaten with this weapon in the waist, hand and feet. She also says that, because of this, she became unconscious and her husband brought her to the hospital. She further says that, as she was beaten severely and that too, with great force, she could not bear with it and jumped into the well.
11. Reading the statement as it is, an impression is likely to be created that, everything happened almost in a sequence at the same place. There was quarrel about cattle; she was beaten; she became unconscious and thereafter regaining consciousness when she could not bear with this treatment at the hands of her husband, she jumped into the well.
12. Exh. 35, the complaint, reads otherwise. The quarrel as to the cattle and giving feed to the cattle occurred at 6.00 a.m. at the field. She was beaten and both the husband and wife came back to the house. At about 9.00 a.m., the husband asked the wife to prepare tea which she did not. At about noon time, she left the house as stated in the complaint under the pretext of answering the call of nature and then jumped into the well.
13. Assuming for the time being that she was beaten severely as claimed in the declaration at Exh. 14, the injuries that were noted on the person of the deceased by the Doctor while she was under treatment were only three. They vary from 1.5 cm. x 5 cm.; 3 cm. x 1.5 cm. and 1.5 cm. x 1.5 cm. would ordinarily rule out the reverse portion of a weapon like axe. That apart, these injuries were located first, on maxillary region, the second one was on the right side of the body, i.e. upper portion and on the left clavical region. There were no injuries found either on hands or on feet which should be the position as per Exh. 14, more so, when as claimed in the Dying Declaration at Exh. 14, she was beaten severely.
14. Now, the medical evidence as set out in the said deposition of the Doctor before the trial Court, at Exh. 15 and the further questions put to him before this Court, it becomes clear that her condition had started deteriorating right from 3.00 p.m. when she entered the hospital and by the time the statement came to be recorded at 5.15 p.m., there was considerable deterioration. Because of rare blood group (B-), the blood transfusion could be given ony at 6.33 p.m. There was internal injury, probably, due to breaking of left rib piercing the lung and there was intra-thoracic bleeding.
15. Constant internal bleeding led to high pulse rate, thinning of pulse and it becoming sketchy and alarming fall in the blood pressure. When all these facts were pointed out to the Doctor in his further cross-examination before this Court, he finally had to admit that the patient was not in a viable state to make a coherent statement.
16. Thereafter, it was pointedly asked to the Doctor the statement like Exh. 14 as claimed to have been recorded by the Executive Magistrate, could in fact, have been recorded and taking the aforesaid overall view of the health of the deceased, the Doctor had to admit that it could not have been so done.
17. If one reads the Dying Declaration at Exh. 14, the first impression that strikes is that it is not a declaration which one ordinarily expects to get in a case like this. In the very opening, the witness has given the statement that he remained present before the officer who records the statement and gives his or her sign. It is not in question-answer form at all.
18. A patient who has suffered so severe injuries and when the body is fighting for life and when the person is fighting for survival, to expect that person to give so cohesive a clear statement is certainly beyond medical probability. That is exactly what the Doctor has indicated.
19. As if this is not enough, there is a controversy between one of the officers, who recorded the statement about the presence of the Doctor and the version given by the Doctor both before the trial Court as well as here. According to the Dy. Executive Magistrate, the Doctor was present only in the beginning part of the recording when he obtained his opinion as to the conscious state of mind of the deceased. The Doctor insists that he was present all throughout and that is why, according to him, the later portion of the said endorsement that the deceased remained conscious all throughout.
20. Somehow or the other, the Doctor was very much insistent upon the Central Nervous System of the deceased being in good condition. However, on that part also, the question put to him in this Court has indicated that this could not have been the position. The Central Nervous System including dominion system of the body may be taking care of dominion functions but so far as the higher level of brain functioning which involves the response to a question put to the injured is concerned, in view of the deteriorating condition when the cognitive process of the brain itself was affected, the Dying Declaration is, indeed, very suspicious, if not, totally useless.
21. In the aforesaid background, Ld. Advocate Mr. Modi, in my opinion, rightly raised following three questions :
(1) Whether, the deceased was in a fit state of mind to give the Dying Declaration?
(2) Whether, the Dying Declaration at Exh. 14 is a reliable piece of evidence to rest the conviction under Sections 498-A and 306 of I.P.C. without further corroboration? and
(3) Whether, from the evidence, the events and circumstances of the case, charge under Sections 498-A and 306 could be said to have been proved beyond reasonable doubt?
22. The description made so far clearly indicates that the answers to these questions will have to be given in favour of the accused-appellant. The net result, therefore, is that the Dying Declaration at Exh. 14 becomes unreliable. It is the solitary piece of evidence in view of the aforesaid testimony of the Doctor both before the trial Court and recorded here, especially when the Doctor admits, that, the patient was not giving the clear replies to the questions put to her and, at times, the questions had to be repeated. Therefore it will not be at all safe to rely upon the said Dying Declaration at Exh. 14 and to hold the naccused guilty. In this background, I agree with, Ld. Advocate Mr. Modi and hold that the charge against the accused-appellant is not proved beyond reasonable doubt. The Appeal, therefore, succeeds. The order of conviction and sentence passed by the trial Court is set aside. The accused is ordered to be set at liberty forthwith, if not required for any other purpose. D.S. is permitted.
